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249791 ORIGINAL TB CITY CL[RK 2j��1 ,r „ CITY OF ST. PAUL couNCa ' ' OFFICE OF THE CITY CLERK F��E NO. • COUNCIL RESOLUTION—GENERAL FORM PRFSENTED BY COMMISSIONE ATF WI�REAS, Michael J. McDonough made application to rezone four and one-half lots situated on the southeast corner of Prior and Iglehart Avenues in the City of Saint Paul from a "B" Residential District to a "C" Residential District for the construction of a 32-unit apartment building; and " WHEREAS, the City Council did vote on June 4, 1g69, by a four to three margin to rezone the property; and WHEREAS, the City Clerk, pursuant to Section 64.06 of the St. Paul Legislative Code which requires a two-thirds majority vote on rezoning matters, recorded the vote as "Failed of Adoption" and refused to publish same; and WHEREAS, Michael J. McDonough did appeal to the Ramsey County District Court for relief; and WHEREAS, the Honorable John W. Graff, one of the judges of the Ramsey County District Court, aYter hearing argument from counsel � for Mr. McDonough and counsel for the City did rule on May 25, 1970, that that part of Section 64.06 requiring a two-thirds majority � vote was invalid, and did further rule that the Council vote on 0 June 4, 19Eg, constituted a lawful adoption of the ordinance rezoning w the four and one-half lots at Prior and Iglehart Avenues in the p City of Saint Paul from a "B" Residential District to a "C" Residential � District; and � WHEREAS, the Honorable John W. Graff did order the City Clerk � to publish the ordinance passed on June 4, 1969, and to correct the Council minutes for June 4, 1969, so as to show that the ordinance � was adopted; now, therefore, be it RESOLVED, that the ordinance rezoning the four and one-half lots at the southeast corner of Prior and Iglehart Avenues in the City of Saint Paul. from a "B" Residential District to a "C" Residential District be published to read as follows: COUNCILMEN Adopted by the Council 19— Yeas Nays Butler Carlson Approved 19� Levine _In Favor Meredith Mayor Sprafka Tedeaco ASainst Mr. President, McCarty � ORIGtNAL Tb CITY CL6RK 249 � �g CITY OF ST. PAUL couNCi� r' � ` OFFICE OF THE CITY CLERK F��E NO. COUNCIL RESOLUTION--GENERAL FORM PRFSf�1TED BT COMMISSIONEO DATE Page 2. "An ordinance amending the Zoning Code, Chapters 60 to 64, inclusive, of the Saint Paul Legislative Code, pertaining to Use Districts, Height Distri� ts and Rezoning of certain properties in the City of Saint Paul, as amended. THE COUNCIL OF THE CITY OF SAINT PAUL DOES ORDAIN: Section 1. That the Zoning Code, Ch pters 60 to 64, inclusive, of the Saint Paul Legislative �ode, pertaining to Use Districts, Height Districts and Re�oning of certain properties in the City of Saint Paul, as amended, be and the same is hereby further amended so as to rezone the following described property from "B" Residence District to '�C" Residence District, to-wit: The west 2 of Lot 5, all of Lots 6, 7, 8 and 9, Block 26, Merriams Re- arrangement of Blocks 24, 25, 26, 27, 28 & 29 Merriam Park; situate on property located on the southeast corner of Prior and Iglehart Avenues in the City of Saint Paul. Section 2. This ordinance shall take effect and be in force thirty (30) days from and after its passage, approval and publication; " and, be it COUNCILMEN Adopted by the Counci� 19— Yeas Nays Butler Carlson Approve� 19� Levine Tn FAVOr Meredith Sprafka Mayor Tedesco A 8ainat Mr. President, McCarty � ORIOINAL 7b CITY CL6RK �� ,� , . CITY OF ST. PAUL FCOENCIL NO. ' OFFICE OF THE CITY CLERK • COUNCIL RESOLUTION—GENERAL FORM PRESENTED BY COMMISSIqNER epTF Page 3. FURTHER RESOLVED, that the City Clerk correct the Council minutes for June 4, 1g6g, to read as follows: "C. F. 244003. FINAL ADOPTION An ordinance rezoning the west 2 of Lot 5, all of Lots 6, '7, 8 and 9, Block 26, Merriams Rearr. of Blocks 24, 25, 26, 27, 28 and 2g Merriam Park, situated on the southeast corner of Prior and Iglehart Avenues, to "C" Residence District. � � � Roll call on Final Adoption of the ordinance. Yeas -, 4 - Comsrs. Carlson, Meredith, Peterson, Tedesco. Nays - 3 - Comsrs. Dalglish, Sprafka, Mr. Pres. Byrne. Adopted. " JUL Z 2 197Q COUNCILMEN Adopted by the Council 19— Yeas Nays �� Butler Carlson roved 19` Levine n Favor Meredith Sprafka J yor Tedesco A Sainst Mr. President, McCarty 2 51970 pUBLISHEO �JUL � qUADRUPLICAT6 TO D�ARTMBNT 249�:��. � '' CITY OF ST. PAUL �,OE NCIL NO. �" OFFICE OF THE CITY CLERK COUNCIL RESOLUTION—GENERAL FORM PRESENTED BY COMMISSIONEQ �AT� w��. x�+ab..� a. ��o�► �.a• �1plieatiou to r•�n• io�r asA oa.�al: i�t. si�sE.d o� the soutbssat ooro.r .: Prior aRd I�lebirtrt A�rettwea is� the Gi�y �i �atut P�wul iro� a "B" �tasid�ntial Di�tri+at to a "�" �a�ii�tial I?i�triet tcr the �4ns3ruottoa o! a 3�-t�t�:i'� apartaa�ent builQiui; et� ��'�lS, th• CiLy C�ausril �tid �vote bra Juns 4� i�69, by a Yonr to t�rss frtat��ia ta res+� tltt *r�►pert�r; aad ��..��rlu7� Ma• tiri�' \i�7�� "��s�r �Q 4��r1�'a V�sQV Qi� �i� .*!. \r� P+��I L��islative Gode �iict� raqu��ef a t�vu-t�tird� �ta,�ority vot• ort resoniag �a�ter�, rrcor�i�i ��e vo�C• aa "�'ail�d oi Adoptio�" +anQ reiused to p�blish ra�rte; a�d �+H�;�E�S, �1c�►e�: .�. Ms�outora� tii agpatl to � ��MY Car�at? Tlistrict Conrt ic�r riel�i�i� e�nQ �'I�'l��:AS, t.nt ��nors,b28 dc�.h�t `�. Grat't', a�� ot the �ud�e�r oi ib� �sey �onat�y �istric� Court, att�rr �[earins artumeat !� cow�e�l !ar �r. M+a�onot� � +�oe��l #aar th• Cf ty diA r�l� oa Nar �S, 1970. that �hst petTt ot Seatfo� +6�.+�6 r�c�uiring a twu-t�irds �ue►�or.ity vc,t�e waa inv*liQ, and did :Carttisr rs�►1� that tl�e Couaeil Ycate on ��n�r 4� 1969, e�vnstitnt�t! a la��'nl alloptios of �!►e ordiwace re�coni� th� lo�tr and on+�--hslf lot� at �rit�r a�d Y�lebart Aves�re�a in ttte C i ty c�I Saiat Pwel �'ra� a "�� esid�►ntiwl �lstrict to c� "C" I�e�ideatial Distriot; aad '��t.AS, i►It� p+�►�rrai�l• John �. arsl! did vrder tb�t Cf�► C1 erY tc pnblish th�e ordi�atno� passed on June 4, i969: �d te aorr��at td� CoaMCil ai�qtt�� tor Jtine �r, i969, so a� to sbow that tl�e ardinade� �a� ataptad; w+�U►, ther�inre s ln� �.L B�SOLVE�� trat t�� or�in�ta�s r�s�ain� tlte x�nr �und oai-balf 2ots at t�r satttbt�tet eao�ra�r ot Priar u� Irl��rt A�esuos in t,• �ity of Saiat Paul iro� a �H�` Rs�id+u�$ial D1.rtri.et t� s "C�" �esi��tisl It3strio� 1w paDlis�to�l t� rsa�A ts ivllsw� COUNCILMEN Adopted by the Counci� 19— Yeas Nays Butler Carlson Approved 19� Levine __jn Favor Meredith Sprafka Mayor A gainst Tedesco Mr. President, McCarty �� 249'��1 qUADRUPLICAT6 TO DlrARTMlNT . ' CITY OF ST. PAUL FCOENCIL NO. �' OFFICE OF THE CITY CLERK COUNCIL RESOLUTION--GENERAL FORM PRESENTED 6Y COMMISSIONEQ DAT� p�� • "'An ordinance a�r+e�rdir� th� �o�►i:an►� Cod�, C1�►ptet� 6Q tQ 4�, iacla�i'�� of t.be �aint !Pa�utl L+��i�lwtire Cod�, ,, . ��rtainin,� �� ta+e Y�i�trietr, Sei�t I►lstr�w�ts sad ��a�,is�i, ot certaia �roP�'ti�s 3n l�Le C�ty oi i�tist Psu�� a� aa�►ded. "�IE C�iXI+i�IL �3�` T�E CXT3t OF' SAII�'T PAITI�, Dt1F�8 ORJ?AI�! seatio� 1. �'ha►t tb� ?o�in; Code. C�►pt�ers 6U to 6�, lnciwi�f, o! �ha Saint Pau� L��irlati�rs �od�, p�rta►iain� to Ui� l�i�tricts, �ti6ht I��str�at• and ��t��ni� o! ear�ai�t prop+lr�ies 3u the City oi �tiat Pat�a, �rs �Q�d� D. and tbe �aaee i� hereby► turth�r asesded �o a� to r��ont �he iollo�i�, des+�rib�d property �r� "B" R��id+�o• �f�triot to "C" R�sSd��c� �is#riot, to.��ti The we�rt � of �aE �, alI o! L+�ta 6, ?, � aad 9, Bloek �6, Mt�rriars. l#�- srra�,es�q►t o! Blaek� S�t 2�, 26, Z'7� 28 � 2� Metria� Park; s�tuat� aa propert�r loa►t�d on thr svs�t�Le��t Qarne�r ot Priar an+d I�l�hwrt A�ta�us� 9.n t.hr �ity oi 'Sa1st PauY. Ser�tio� �. Tbit ardina�aev shall tak• e!#oat �td be ia toro+� il�irtY (3Q� daTs iros a�d atter i�a pa��aao� approva2 �d publ f t�►�ion�" �ad� b� it COUNCILMEN Adopted by the Counci� 19— Yeas Nays Butler Carlson Approved 19� Levine Tn Favor Meredith Sprafka Maqor A gainat Tedesco Mr. President, McCarty �� QUADRUPLICATi TO D6rARTM6NT " - +V��1 , � CITY OF ST. PAUL F,�UNCIL NO ' OFFICE OF THE CITY CLERK �' COUNCIL RESOLUTION—GENERAL FORM FRESENTED iY COMMISSIONER DATF Yi�,! ;�. F`Q'�TR�R R�SaLVI�t, �hat �h� C.ity �lerk corr�ect th� Couactl •isnt�r ier .�tr 4, 1g69, �+� r�ad as Yc11o�s s "C. �'. f��43. �'It�AL �u4�'TIU� An �rdlasa�e rezogie� the w��t � vi Lot 5, all ai Lot• 6, �, 9 an�t 9, B2ocic g6� Marri�r Rearr. ot �locks 2�, 2S� �6, �7, 2� aad SZ9 M�rris� Park, sits�ted �►e t�� souf►��sst aorner oZ Prior and ISl�►bart Araaue�s, to "C" �issidrac� DisLri�ct. �r * +� ttall �all o�r Fiaa� Adt►ptio� oi ths ardissno�. Y.ss - 4 - Coaas�. C�rlson, Msredit,h, Pet�rtun, Ted��rco. Nays - 3► -• Cer�r�. Dals1 i eh, :�pratica, �ir. Pr��. Byrae. �kdo�rt�tt,n �� 2 2 1970 COUNCILMEN Adopted by the Council 19— Yeas Naqs �U L 2 2 19�� Butler Carlson Approve� 19� Levine T., Favor Meredith Sprafka �y�r A gainat Tedesco Mr. President, McCarty � ; , � � � -�� ;. . - � � � � � E � � � � T , MAY f�'�g�� DISTRICT COURT STATE OF �1I\\ESOTA �RPD�pT�ON COUNScI., COUNTY OF RA.�:SEY � SECOND JUDICIAL DISTRICT - - - - - - - - - - - - - - - - - - - - - - - Michael J. T1cDonough, . Plaintiff, ME��ORA;�DUI�t OPI�IOv - vs - File No. 369321 City of Saint Paul and i-Iarry E. tiiarshall , City Clerk of the City of Saint Paul ,. Defendants . - - - - - - - - - - - - - - - - - - - - - - - � I - THE PROCEEDI\TGS Plaintif.f ' s motion for summary judgment came on for hearing before the undersigned in Special Term under date of March 17 , 1970 . Jor.n E. Daubney, Esq. , 73s Minnesota Building, St. Paul , D�innesota SSi01 , appeared on behalf of the plainti£f, and Jon R. Duckstad, Esq. , of the office of Corporation Counsel , City of St . Paul , 316 City Hall and Court House , St. Paul , �tinnesota 55102, appeared on behalf of the defendants . Counsel for plaintiff filed a brief at the time of hearing , counsel for defendants subsequently filed an anstiaering brief , and counsel for p2aintiff subseauently fil�d a reply brief. Counsel for defendants also filed two affidavits . Counsel for plaintiff also furnished the Court with a copy of 'the proceedings had before the City Council on October 20 , 1967 relative to a proposed amendment to Section 64 . Ob of the Legislative Code . All parties are in agreement that there is no question of fact and that plaintiff' s motion for summary ' 2 judgment presents only c�uestions of law. The matter is therefore appropriate to be presenred by a motion for summary judgment. II - THE FACTS On January 23, 1969, plaintiff filed an application with the defendant City of St. Paul reQuesting that four and one-half lots situated on the southeast corner of Prior and Iglehart Streets in the City of St. Paul , be rezoned from "B Residential" to "C Residential" to permit plaintiff to erect a ' 32 unit apartment building. Plaintiff ' s application for such rezoning was subseQuently reviewed by the St. Paul Planning Board . which recommended approval . The application for rezoning was sent back to the St . Paul City Council and hearings were held thereon on April 8 , 1969 and again on �4ay 14 , 1969. On A�lay 14 , � 1969, the City Council directed its corporation counsel by a vote of six to one to prepare a formal ordinance tiahich if subsequently adopted would have the effect of reclassifying the subject property from "B Residential" to "C Residential" . The proposed zoning ordinance came up �for adoption by the St . Paul City Council on June 4 , 1969 at which time there were four votes in favor and three votes against passage of the ordinance entered upon the official records . The City Clerk follo�ti�ing such four to three vote caused to be inserted in the minutes of Lhe . St. Paul City Council for June 4 , 1969 a statement that the proposed ordinance had failed adoption and thereafter refused to publish said ordinance . The action of the City Clerk was apparently pursuant to the provisions � . . . 3 of Chapter 64 . 06 of the St. Paul Legislative Code which provides, among other things , Lhat the proposed amendment shall not be passed unless two-thirds of the full membership of the Council vote in favor thereof. It is the requirement of a t�oo-thirds vote of the full membership as provided in said Section 64 . 06 of the Legislative Code which gives rise to this litigation. It is undisputed that the other reQuirements of said Chapter 64 . 06 have been fully complied with. �• � � IIT - THE E�ABLI\TG LEGISLATION Historically, the original enabling legislation was Laws 1921 , Chapter 217 . That act provided that cities having a population of over 50 , 000 inhabitants : could adopt certain regulations affectin� the location , size and use of buildings , and could provide for different locations for different districts ; and may thereafter alter said regulations or plan, such alterations , ho�aever, to be made only after the affirmative vote in favor thereof of a majority of the members of the goverr,ing body of such city. Laws 1923, Chapter 364 amended the 1921 law so as to require the affirmative vote in f avor thereof of two-thirds of the members .• of the governing body of such city before such zoning regulations could be altered. Laws 1925 , Chapter 284 amended the 1923 law so that the city council could alter their zoning regulations or plan after the affirmative vote in favor thereof of a majority of the members of the governing body. Since the 1925 law, the reQuirement of the affirmative vote in favor thereof by a majority of the � members of the governing body to alter so-called zoning re�ulations . 4 in cites of the first class have been and stil�l is the law in - the State of Ntinnesota. See �inn. . St . 462 . 357 , Subd. S. IV - THE CITY CfiARTER The City of St. Paul operates under a Home Rule � Charter form of governmenr . jahile the City Charter is silent concerning the requisite votes necessary to adopt amendatory zoning ordinances in particular, Section 120 of the City Charter sets forth in general the vo�es necessary to adopt ordinances and • resolutions . Section 120 reads as follows : "Votes necessary. --Sec . 120. �o ordinances , administrative ordinance or resolution shall � be finally adopted or passe3 , or operative and binding unless the same snall be passed and adopted by an affirmative vote of a majori� of all o�tne �em ers eiec� ot the cou:�cil , inclu�ing the nayor. All sucn vo�es shall be taken by ayes and nays and shall be entered upon the record of the proceedings of the � council . " (emphasis supplied) V - �THE ZONING ORDI;�?ANCES The ori�inal zoning ordinance by the city was adopted on July 22, 1922 (Ordinance No. 5840, Council File No . 39341) , the two-thirds affirmative vote requirement being in Section 23 thereof. The ordinance was amended on June 9 , 1923 (Ordinance No. 6066, Council File No. 45317) , the two-thirds affirmative vote rec{uirement being in Section 1 thereof. It was again amended on October 30 , 1948 (Ordinance No . 9169 , Council File No . 143119) , the two-thirds affirmative vote requirement being in Section 2 thereof. It Saas again amended on April 8 , 1961 (Ordinance No. ' S 11934 , Council File No. 201154) , the t1J0-thirds affir�ative vote requirement being in Section 1 thereof. T;e ordinance as now amended relating to the tzao-thirds affir�ative vote requirement is Section 64 . 06 of the Le�islative Code . The requirement of an affirnative vote of two-thirds of rhe members of the City . Council appears to have been in effect continuously since the original comprehensive zoning ordinance ti�ras adopted in 1922 . VI - A,VARE\'F.SS OF �1AJORITY VOTi REQUIRE�IE�TT Generally, the policy of a zoning ordinance is not a matter for the Courts . �'or is the matter of good faith or motive in the adoption of an ordinance a natter for the Courts . In this case, the awareness or unawareness of the City Council that the enabling act and the city charter provided for an affirmative vote of a majority of the menbers and that the Legislative Code provided for an affirma�ive vote of two-thirds of the members may be a factor in determinin� the relief w}iich should be awarded in this case . As has been heretofore observed, the original enabling legislation was the 1921 Act (Chapter 217) . That act provided that alterations to a zoning ordinance :nay be made only after the affirmative vote in favor tliereof of a majority of the members . The f�rst ordinance (5840) iaas adonted on July 22 , 1922 and provided that alterations to the ioning ordinance may be made ' only after the affirmative vote in favor thcreof by two-thirds of the members . It is clear that the first ordinance did not comply with the 1921 enabling act . The 1923 Act (Chapter 364) . � , ' 6 changed the requirement of affirmative vote of the majority to an affirmative vote of t�ti�o-thirds of the members . The effect brought about by the 1923 Act made the first ordinance as far as the voting requirenent is concerned in compliance with the amended enabling act . The 1925 Act (Chapter 284) changed the requirement for altering a zoning ordinance back to an affirmative vote by a majority of the members . As been seen the ori�inal ordinance was amended a number of times to incorporate other changes made by enabling legislation, but the reauirement that alterations to a zoning ordinance be made only after an affirmative vote of t�ti�o-thirds of the members has never been changed. In the amendments to the zoni�g ordinance , the voting requirement was re-enacted without chanbe. Under date of July 25, 1967 , the Corporation Counsel , for the City at the request of the City Council submitted a written opinion whether a majority or five-sevenths vote is necessary to rezone under the City Zoning Ordinance. In a very well written opinion consisting of five pages it was concluded "that under both the Saint Paul Charter and the provisions of Minnesota Statutes , Section 462 . 357 , Subd. 5 , the City Council cannot require a vote greater than majority approval iahen acting on amendments to the City Zoning Ordinance. " . . Following the submission of this opinion to the � Council, a proposed amendment to Section 64 . 06 af the Legislative . Code (Council File No. 23409) came on for third reading on October 20, 1967. The Corporation Counsel explained the changes _. _ ...__ ..._.._ _...__---_-_.- ---. .. ...---------__.__._�.___.__.._..._ .. ... . . . .. .. .. . ...__.._.___._. .._- , . , . . . • . � 7 contemplated by the proposed amendment one of which tiaas to change the number of affirmative votes required to rezone from five to four. The explanation �aas given that the state latia on the subject required only a majority and on2y a majority was required by the charter to adopt an ordinance. There was some discussion with some expression in�icating that the matter should be presented to the courts "for clarification" . Ultimately, the proposed ordinance was not approved. The foregoir,g demonstrates that there was an awareness of the problem wr.en the initial zoning ordinance was adopted and when amendments iaere made to the ordinance. In any event the awareness was most acute tti�hen the opinipn of the Corporation Counsel was reQuested by the City Council in early 1967 and when such opinion tivas received by the City Council in July 25 , 1967.. There was an awareness when the amended ordinance was considered on October 20 , 1967 , at which time the Corporation Counsel again explained the conflict with the charter and the enabling act. It �uas at that time that it was suggested that it be presented to the Courts "for clarification" . � VIT - THE APPLICABLE LAtiti� The applicable part of the enabling statute, Minn. St. 462 . 357 , Subd. 5 , is as follows : . � "Subd. 5 . Amendment : Certain Cities of the First Class . The provisions of this subdivision apply � . to cities of the first class . . ___ ..._.....__. ...__._ . _ .. . .. _._....__._._.�...,, • . 8 In such cities a:�endments to a zoning ordinaiice shall be made in confor:�ance taith this section but only after there sr.all have been filed in the office of ;.ne city clerk a taritten consent of the owners of tc��o-thirc:s of the several descriptions of real estate situate �aithir. 100 feet of the real estate aifected, and af.ter tne affirmative vote in favor the:eof by a najori�of the nembers of the overnin� body of any sucn ciry'�— emp asis supplied The general rule that an ordinance must be consistent with existing statutes was laid dotti�a by our Supreme Court over fifty years ago in Potaer v. \ordstrom, 150 A4inn 228 , 232, 184 N. 1V. 967 , 9 where the Court stated: "It is elementary that an ordinance must not be rePugr.ant to , bu� in harmony laith, �he � laws enacted by the legisl�ture for the government of �he state . It cannot au�horize what a statute forbids or fo:bid �,�:�at a statute expressly perr�its , but it may supplement a statute or cover an authorized field of local le�islation unoccupied by - general legislation. " It has been held that the power of a municipality to amend zoning ordinances must arise from a legislative enactment delegating such authority to it. Alexander v. Ci�y of �finnea�olis , 2b7 T4inn � 155, 158 , 125 n'. W. 2d 583, 586. It has also been held that the eaercise of the power to amend a zoning ordinance must conform to the procedural r�equirements of the enabling statute. Olsen v. City of Nopl:ins , 276 �:inn 163, 171, 149 N, lV. 2d 394 , 399-400 . Our Supreme Court recently had occasion to consider this enabling starute in 0 ' Brien v. City of St. Paul , Minn , 173 N. �9. 2d 4G2. Specifically, 0' Brien held that the City could not rezone without the consent of the owners of two-thirds of the real estate situated within one hundred feet of the real estate to be rezoned � � � � 9 even thouoh the City in its pronosed amendment provided that such amendment take effect tivithout such consent . In the course of the opinion, the Court referred to the enabling statute and stated that "Minn. St. 462 . 357 , Subd. S prescribes the procedure � for amending the zoning ordinances of cities of the first class. " The teaching of these cases makes it clear that r.►unicipalities dcrive their power to ar�end zoning ordinances from the legislative enactment and such power when exercised must conform to the provisions of such legislative enactment. This conclusion is consistent with the expression of legislative intent stated in Minn. St . 462 . 351 wnere it is stated that "Tt is the purpose of Sections 462 . 351 to 462 . 364 (which includes 462 . 357) to provide municipalities , in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning. " The defendants raise t�ao points , neither of which appears to be meritorious nor reauires ex�ended discussion. The first point is that since the two-thirds majority vote rec{uirement . in the ordinance has been in existence for such a long period of time, a presumption of validity attaches because of acquiescence in such ordinance. It is further contended that properties 'surrounding a proposed rezoning, though they may not have a vested right in the pr•esent zoning, have the right to place considerable reliance on the existing plan and have been afforded a wide latitude of protection citing State v. �Iodern Box �lakers , 217 hiinn 41 , 13 N. tit(. 2d 731 and Filister v. City of '�linneapolis , 270 blinn 53, 133 N. W. 2d 500 . State v. �todern Rox �lakers , supra, involved a ' � 10 Minneapolis zoning ordinar.ce which stated in part that "such districts , and their boundaries , as shown upon the maps attached hereto (emphasis supplied) and made a part of this ordinance. " The question was lahether the �aps were in fact attached. The claim was that if the map was not so attached then the ordinance tiaas not valid. The Court held that there was a presumption of validity that the �aps were attached and that the evidence offered did not overcome the presumption of such validity. The Court also stated that "Courts will be slotia to hold an . ordinance invalid which had been in operation and unchallenged for 13 years , and und�r tahich, as here, valuable rights have accrued, which would be destroyed if the ordinance were held invalid. " Filister v. Citv of �tinnea�olis , supra, iaas a declaratory judgnent action seeking to set aside certain zoning restrictions as being confiscatory and unconstitutional as affecting plaintiffs ' property. Relief �aas denied. The land and the surrounding area were originally �on;.': in 1924 for one and two family residences and the area was developed in compliance with these restrictions . One of the plaintiffs bought the pxoperty in 1952 at a tax sale. A new comPrehensive zoning . ordinance was adopted in 1963 permitting only single family detached dwellings and buildings designed for educational , religious and similar purposes . The Court held that since plaintiffs and their predecessors in interest remained passive when they had a duty to act and hence it was incumbent on them not only to prove tha� the ordinance was confiscatory but also to prove by cl.ear and ' 11 convincing evidence that the relief they sought would not result in any substantial detri�ent to neighboring property improved in reliance on the validity of the ordinance . I do not think that the holding in these two cases can be equated to the facts in this case. In this case the difference between Section 64 . 06 of the legislative code on the one hand and the city charter and the enabling act on the o�her hand as far as the two-thirds vote requirement and the majority vote requirement are concerned is the matter of one vote. Under the legislative code five affirmative votes are required ti,lhile under the city charter and the enabling act four affirnative vo�es are required. As observed earlier the issue in State v. �iodern Bo� ��alcers , supra, was whether it was proved that the maps were not attached to the ordinance while in Filister v. City of �:inneanolis , supra, the issue was �ahether the plaintiffs had proved the ordinance was confiscatory and that their requested relief would not result in detriment to neighborin� property improved in reliance on the validity of the ordinance . The governing body of the City consists of the mayor and six counci� ;.iembers taho are elected every two years . As many elections have der�onstrated there are changes in the people who occupy these positions . It is doubted t}iat reliance here was placed on a forecast of the number of affirmative and negative votes that would be cast in the future for a pronosed ordinance and that property �aas improved in reliance upon such forecast . The rule that a presumption of validity attaches after a period of time because of acquiescence in an ardinance has no application where, as here , thc unconstitutionality is obvious and � its invalidity clearly appears . It cannot be seriously contended . � � 12 that immunization from the effect of a lala can� be acquired by consistent and clear violations of such la�r or as our Supreme Court observed (Filister v. City of Atinneapolis , supra, at page 58) "mere acquiescence , re�ardless of the period thereof, cannot legalize a clear usurpation of polver which offends against the constitution adopted by the people". Here , it is plain that the provisions of the legislative code (Sec . 64 . 06) are in conflict with not only the City Cha:ter (Sec. 120) but also with the enabling statute (�1inn. St. 462 . 357 , Subd. 5) . The other point raised by the defendants is that the requirement of an affirmative vote of ttti�o-thirds of inembers � of the City Council substantially conforms to both the state enabling act and the city c}:arter. It is contended that the two-thirds vote requirement in Sec. 64 . 06 of t}ie St . Paul Legislative Code satisfies the minimum number of votes to adopt an amendatory ordinance. To pursue this contention to its logical conclusion it in effect says notwithstanding the provisions of the charter a^� ;.he enabling statute it would constitute compliance thereiaith if the Le�islative Code provided that a unanimous vote was required since a unanimous vote satisfies the minimum nunber of votes to adopt an amendatory ordinance. To attempt to construe tne word "majority" as being the same as "t�ao-thirds" because the minimum is satisfied ignores �aell known and established canons of construction. Minn. St . 645. 08 , entitled "Canons of Construction" provides in Subd. (1) in part as follows : • � . 13 • " (1) Iti'ords and nhrases are construed according �o rules of grammar and according to their common and approved usage ; " Chapter SO1 of the Legislative Code entitled "Rules of Construction and Definitions" states in Section 501 . 02 in part as follows : "501 . 02 General Rule. �4ords and phrases shall be construed so far as possible in their plain, ordinary and usual sense- - -" The word "majority" according to its common and approved usage means the number greater �han half or nore than half of any total . While two-thirds of a total would be a majority, anything less than two-t}iirds and more t:zan fifty percentum laould also be a majority. Our Supreme Court in 1;innea�olis-I:oney:aell ReQulator Co . v. �adasdy, 247 �iinn 159 , 76 �. tV. 2d 670, a zoning case, points out a rec{uirement of two-thirds vote of all the members is different and more restrictive than a requirement of a simple majority of all the menbers . It must be apparent that the requirement of a two-thirds vote in the legislative code imposes a more stringent and restrictive rule tha;� the rec{uirement of majority as used in the enabling act and in the charter . V I I I - CO�vTCLUS IO�T . This Court is not unaware of the problems which present themselves in rezoning matters , particularly where the proposed rezoning involves a proposed multiple dwelling to be built in an area that has been characteristically a residential district . It is also recognized that multiple housing provides people with a place to live who do not desire or cannot afford � . ._ __ ..... __._.Y..__ __�____...__......__....----_.._ �._.____._.._, _.._.. . . .. ._ _ _.__ .._ ..----- - . , � , 14 a home of their own or have reached the point where they no longer desire to or are incapable of taking care of a ho�e of their own. Some courts �ave found occasion to be articulate about the proposed erec�ion of apart�en� houses and the zoning qucstions that such proposals presen�. See Twin City Building � Investment Co. v. IIou��ton , 144 Minn 1 , 174 N. ti�f. 885, 176 N. j9. 159, 8 A.L.R. 5S5 , Berry V, Houghton, 164 �iinn 146, 204 N. �V. 569, 54 A.L.R. 1012 , 273 U. S. 671 , 47 S. Ct . 474 , 71 L. Ed. 832 , and Village of Euclid v. Anber Realty Co . , 272 U. S. 365, 47 S. Ct. . 114, 71 L. Ed. 303. jVi�h due deference to the views exnressed in the foregoing cases , it must be recognized that the wisdom of �xoviding enabling acts relative to zonina ordinances is reposed..: under our law in the Legislature. The determination of �ahat zoning ordinances sha�.l be adopted is within the discretion of the City Council provided that such ordinances are reasonable and not arbitrary and are within the terms of enabling legislation. The only perogative of the Court _:�. �. ��ases of this kind is to determine whether there has been cor�pliance iaith applicable latia. If there has been such 'compliance the Court must deny relief. If there has not been such compliance, the Court must direct anpropriate relief. It follows from tivllat has been stated that the particular provision of the Legislative Code (64 . 06) requiring � an affirmative vote of two-thirds of the members is null and void. This does not mean or su�gest that the balance of the zoning ordinance is invalid. D4inn. St . 462 . 363 provides that except as . . � . 15 provided in sections 4G2 . 351 to 462. 364 , valid� ordinance now in effect shall continue in effect until amended or repealed. The question as to the effect of the vote on June 4 , 1969 on plaintiff' s application to rezone the subject property has been given much consideration. The briefs of the parties have not covered �his particular point. It has been heretofore pointed out , the city council was at,Tare of the inconsistency of the legisla�ive code with the enablinb legislation and the city charter. Since t:�ere were four affirrrative votes there was compliance with the state enabling act and according to the parties there is no question that there ti��as full conpliance with the other provisions of Section 64 . 06 of the Legislative Code. Under �hese circumstances the action of tr.e city council in casting four affirmative votes could only have the effect of adop�ing the ordinance since it cannot be said that there were not sufficient affirma�ive votes . Under these circumstances the plaintiff appears •tc �� cl�arly entitled to the affirmative relief requested. Accordingly it is hereby determined: 1 . That the provisions of the St. Paul Legislative Code, Section 64 . O�i, to the extent that such � section requires the adoption of an amendment to the . Zoning Ordinance by an affirmative vote of two-thirds of full membership of the city council , is null and void. � 2 . That the action of the City Council of the � City of St. Paul by casting four affirr�ative votes for the I L . t � � • ' ` 16 � ordinance rezoning the subject property to "C Residential" constitutes a lawful adoption of such ordinance. 3. That defendant IIarry E. Nlarshall , City Clerk of the City of Saint Paul , is directed to publish the said ordinance as provided by latv, and to correct the minutes of the City Council for June 4 , 1969, so as to show that the said ordinance taas adopted. Counsel for n:aintiff is requested to prepare a suitable form of judgment and to subr�it it as to form to Counsel . for the defendants before submission to �he .Court . Dated at St . Paul , �Iinnesota, this �th day of May, 1970. `� � 9� �' !.9. /'�'�: ;�. istrict��;�,; ,..K: T'ebr��iary 1970 I�ir. Da:�i e 1 !!. Yl as Corporatiora CotAnsel Buildi^�; Dear Sir: I am ir recei�t of a St�2MONS serve Jc�hn na��bne;r� Attc?rney, on �albert Olson, my '�eputy ctio titled "Michael J. McDonou�h, Plaintiff, vs. City o aint Pa . and ry E. Marshall, City C1_erk of the City o�' Sa3nt ul, Defen ts.", and request your office t� defend me in this ma er. Very truly yours, City Clerk HM/ng Feb. 19, 197 T�`r. �aniel A. K7_a.s Corporati.on Counsel Baildirr� Dear Sir: The Ci.ty Cauncil_ ref ed tfl you e att checi SUI��OFdS from John �. ]�,ubney, Att ney Por Mic el ?��TeD�nou�h, vs. the City of Saint Paul and Hn E. ASarsh , City Cler�i, in connecti.on with the vote require t on a ition to rezone property at the corner an Aves. V�ry txuly yaurs, t�0 Ci'ty Clerk ng L) y � . . . � � �. . . , . STATE 0�' MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT P�Iiciiael J. McDonough, P].aintiff� vs. SUI�IONS City of Saint Paul, and fiarry �. Marshall, City C1erk of the City o� 5aint Paul, � Defendants. TN� STA'I'E OF MINi�TESOTA TO TI� ABOVE NAt�D DEFENDAIdT: You, and each of you, are hereby surmnoned and required to serve upon plaintiff's attorney an answer to the complaint which is herewith served upon you, within twenty (2d� days after the service of this Swmnons upon you, ex- clusive of the day o�' service. If you fail to do so, �judgment by d�fault wil]_ be taken against ,you for the relief demanded in the co�nplaint. � JUHN E. DtiU}3�,EY John �. Daubney --__ ..��_ Attorney for Plaintiff 738 Minnesota Building St. Paul, Minnesota 55101 . , �. . . . . STATE OF MII'�ldE.SOTA DTSTRTCT COURT � COUN�'Y OF' �iSEY s�CUI�(D JUDICZL�I. DISTFtICT Michael J. McDanaugh, P2aintiff, vs. CQM�'LAINT FGR IlECLQ.R�7'GRY v v��1 City of Saint Paul, ar�d �arx,y E. Msrshr�].l, City Clerk o�' the City o�' Salnt Paul, I?efeni�ants. l�ow come th� plel.ntiff and Pcr his cause o�' �etian h�rein complair:s and alle�;ea: z. Znat at all. i:imes h�r�:in menti�ned plalntiff �:as and �till is tl�e crwner of c�rtain pr�mi��s in �he City a�' St. Paul, Ra�sey Caunty, I�i.nn�sota, at tue s:.�utheast corz.er cf Prior and I�lehart F,venues, d�scribed as: 'T'Yie t�st one-'ra�lf of' Lot 5 and a13. o� Lots 6, 'j, 8 and g, . Bl�ek 2E, A;arritaa�'s Rer�rr�ement c� Blccks 2��, 25, 26, 27, 2� and 29, �•lerriam :r�rk, accorain� tu the plat tk,ereot ef record anii an file witii t.e Reg].stc�r oF Deeds in �.nd fur saicl C�unty ar..d ��ate. zz. That dz�endant Cl�y af Saint Paul �.s a munic:ipa]. ccrporation organized . and exieting under trle lawa af the State �f i�tinnes�ta, located in thr: County oP Rsmsey in sc�id State, and e.t a11 tim�a hercin mentioned cunstituted a so.-called city o�' the �irst class, and that from arzd a.tter the cecennial census oz' 1g60 cantained a populat�c�n i.n �c.ceas of 300,000 persons. zz�. That dePendant Harry L. .�4arshall is, and he,s been subsequ�nt to the year 1956, tha duly ap�aintec� and acting City Cl�rk of th� City o� St. Pau7., and that ae such i� ahar,�ed wi-tU th� dutiea and responaibilities of keeping an$ maint�ning tha minutea of the Council of the �ity of 5t. Paul, a.nd the publication oY or3inancea upon their adoption by the sa�.3 City of at. Faul. SV. That the City of St. Paul euacted in 1922 a series of ordinauc�s known a$ the Zoning Code of the City af St. Peul, and that saifl ordinance, to�ether � ' 't- . , : r-.-> • � � ' :i' �2� with araendatents thereof, is and wae at all times herein mentioned in ftzl�. force e�nd effect in the City oP St. Pau2. v. ' �'4�at the ordinanee o�' the City oP 8t. Paul requires any perecan desir- irig ta con�truct a building within the City boundari.ee to obtain a building permit therefor; th�t building permits �ar� iesued only for such typea and claeae8 bP�buildinga sa conPurm ta the regul.�tions contained in rsaid zoning ordinance. • vx. That the said �oning ordixrance permits the con�tructioa ot' multiple residential units only in the Zoning classiPice►tions of "C" Residence, con�mercial, lightinc3ustrial, and heavy induatrial district�. VII. That an ar about Januaxy 23, 196g plaintiP#' Piled ri.xn applicsLion � '�rith defendattt City of ��i,nt Paul to rezone the ebove de�cr3bed premises from "�" residence district t� "C" re�idence district ea as to pexmit the cox�truetion of an epartment building thereoa. vxrx. That th�re��'tex tha ssid �tltian of plainti�f vre�s determine8 to be legally supPicient by defendar�t City oP Saint Pau1, by rea�on aP it cantalning the neceBSary consent o� the surx�ounding progerty owners, as provided by 3.e,w. IX. �at there�Y'ter th� �sid petition was rePerred by the Cawacil of dePendant City oF Saint Paul to t,he Baard a� Zpnir�, and that the Board o:� ?Anf.ng dL:].y conc3uct�d a hsaring thereon and Pavorably recommended t,he granting oP the said petition to the said City Council. X. That the aaid City Couneil o� det�ndant City of Saint Paul duly con- ducted hearir�s on tb.e �e�id px�apoeed :ezoz�ing �n April 8, 1969, and egain on M�Y ��, �9b9, e�t which time the ��id City Gouncil. directed the City Att�ruey ot the C�ty o� E;aint Paul to pxepare a,n ardinance granting the aaid pestition, end that e+�id r�cnrmmenda��on �as Pav�rably aated upon by the City Counell t�y et vote to 6 to 1. • , � ; r;:. • -3- XI. 'I'izat theraafter the said ordinance rezoniAg th� said premtaes wa� c�uly proce$sed by the said City Council �nd th�t i� came before tbe �aid City Couneil 2'or final adoptifln on tha �+th day oP .7�ane, �g6g, at which time four membera o� �the said City Council vUt�d �n favor oP the e►doption of th� said ordinar�ce and three membere of the s�id City Counei.l vated z�ot to approve the adoption of the �sid ordf.nance. XII. Th�t th��a.id defendant Ha.�ry E. Marshall, City C�.erk, caus�d to be inserted in th� minut�s oY t,he sai� Council far the �+th day of 3une, 1�9, a statement the�t the ordineucQ h�c1 �afled oP adopti.on, ex�d �there�Pter reflxsed to publish the gaid ordinance. � _ XIZI. �,at the zoniag ordinsnce Qf the C�.ty of St. Pau1, whieh has been cadit'ied in tb,e $t. Faul Legiel.ative Code as Chapte� 6�, we►s adogted pursuan.t to ent;bling legis].�tina enacted by t�xe L�egislature nf' the Btete of Minneeot�.i which �nebling legislation is cadified as Chapter 462 of Minnesots Statut,es. XIY. � That the ariginal enabling legislatian adopted by the Legislature of #,he �itate o� Minnesota �rae Chapter 2�.7 0#' th� 8esslon La�s Qf' M.innesota for . tha year 1921, and pravid�d that in cities of the 6tate ot' Minnesot� he:ving a population o� ov�r 50�000 inhabitant� cauld e�dnpt eertain r�gulatione et'�'ecting th� location, size s�n8 use o�' building�, s.nd praviding for BifPerent locetione �or cli.fferent digtricta, and that aPtex the a8option of eueh regulations that it could be alt�red only by the a�firmativ� vate o� a ma�ority af the ra�mbers pY the gov�rnir,� body aF sucY� eityj th�t the said LegiQlatur�, by seesion Laws �or tha ysar 1923, Chapter 361�, amended th� �e►ld law so as to require �he �Yfirtt�ative wote of two�thirda �� the raembers af the governing body of �uch city befare guch regulation� could be altereti; tll�at pureuant to the BQ�eion I.,�w� af 192�, Chapter 28�+, the requirem�r�t of a twr�-thirds vote waa e�msnded Qo ae to return the requ3.r�ment of a simpl.e ma,gority vote 'to �lter the aaid regulations j that $ince tha s$id fieBSion Laxs o�` ].q25 th� regu�.r�ment c�� a , . � � r.-. . _ . .�� , � � �� aimple me�ority vote to alter so-ca3led zoning re�ula�tlona in elti�� of the t'irat class ha�t been and i.s still. the law in the State oP Minnesota, presently being cod@d es Minnesote� Statutes ��1+62.357, Subdivieion 5. XY, That the Cit�y of Saint Paul had authority t� adopt a zon3ng ardinance by ree�son oP said State enabling legislatiou, but that the said zon2ng or8inance, a8 adopted aad �ubsequent3tiy aznended and aodi�ied as f�apter 64 of the Leg�slative Code a� the City af 8t. Paul, contained e requirement in Section 6�.06 that an amendment to the zoning ordir�anae could no� b� passed unle�s two-thirda oY the f�l.l membership of the Counetl voted in f€�vox thereof� which prov�.s2on we�uld rQquire an a�fizz�ative vote aP five �mbers, as �the said Council oP the City of St. Paul consiats of seven votin� membQrs, being the i+I�yor and eix elected Caunc�ilmen. XVI. Thett the Charter of the City oY 5t. Pau1f from whicb the se�id City Council obtsins its �ower to enact ardinancee� as well as �'ram e��blin� ac�a aP the Legislature of the Stata of Minnesota, provi.dea in Section 12� of t?ae said City Ch�.rter: "No ordinances, administrative orc�i.nance or resolut�on shal.l be finally adopted or pasaed� or Q�erative and binding unlees the same sha7.l b� pc�ssed and adupted by an affirmative vote of � m�e,�ority o� all of the member� elect aP tY�e council� including fi.tie m�yar. A�.1 such vot�s shall be t�ten by ay�e and nays and shall be entexed upon the recvxd oP the proceeding�a Uf the oouneil." _ XVZI. �iat a�id E3ectivn 120 oP the Chartes af the City of St. 1'aul ia and ha� been in t�.il1 force �d effect at a11 times herain mention�ed. XYIII. That 6ecti.on 6�.0� of th� Legislative Gode of the City aP St. �aul� �n��far �e th� sa� requtres a two..tYiirds vnt� oP �he City Coiu2cil to �lt�r ox araend ths zaning regule�tiozu� oY` t,hQ eaid City, is in conf].ict with (�e►pter 120 oY ths aald Chart�r n� the City o� 5t. Paul, aud ie� in canYlict Wi.th the enabling legislation �'or aoz�i.ng rsgu].ations to ba e�dopted in aiti�a oP the �'iret alase, as aet fortki in Minneaota Stotutea 462.357, �ubdiviaioa 5. � ; �: _ . , , • ' ' � , � -5— �cix. That the Council of th� City nP S�.int Pe�ul is �ithout power or authority to e.dopt an ordines�ce which would require a greater affirmative vote por sri e►�ndment to the zonin� ardine�nee than a si�l� ma,�ority, ar foux s��irmativs v�a'tes, and that by ree.son thereof thc ordinanc� amending the zoning ardinaace so aa ta rezone th8 above describ�d premises to a "C" reeidence . district clsaeifiest�ona as affirmatively acte�. upon by the Council aP the C1ty of St. Paul at its meeting oP June 4i 19�9� bY � g�'"e�v�nths vote� as afor�asid, w311 cause the aaid premises t� be reZOned upon the publica�ion of the asid ordinance. XX. That defendant II�rz'y E. Marshal.l, the se�id Cl�:rk oP the City of St. p�ul� ha� Yailed at�d re�'used to e�use the said ordixiance to be published� and that the Yailure and refus�.]. to �rublish the said ardinance was arbitr�ry, un� reaeonabl.e arxi in vi.olation af plsintiff's rights aa afar�a�aid, and 8eprive� pl.e�tntiPf o�' his prc�pex'ty witbaut due pxoceaa oP le�w and of �be equal prntectian ot' the 1aw contr�ry to the Constitution oP the Uz�.ted S'�ates. XXI. That ew actual eontroversy oY a �ustiGiable ttatu.z'e sxists between plainti£f and deP�nd�nnta involving the ri�htg and 1Sabilitiss under 'the ordine`ncsa, City Chaz"t�r and laws hereinabove re��rred to. WI�RE�'O1�E, P1.�inti�'f prays the Caurt for i�a �udgraent a.nd ctec�e� cons�ruing tbe aaid ordinanee, Charter and 1aws� �nd detexini.ning: l. That #,he e�ction af the City Counei2 0�' the City oP St. Pa�1. in apProving by a faur-aevenths vote p].a.intsff's petition to re�one the said pr�miaes ta "C" �e�idenae dietrict wes duly and lawfully adopted. 8. Thet dePendant Harry E. A�axeh�ll, Ci.ty Clerk a� th� City of St. Paul, be directed ta gublish the �aaid c�rdinance ea provided by law, and t,o aorrect the mir�utes of the City Counci3 for June �, �.9b9, eo as to show that the aal.d oxdixiesn.ce vas ac��pted. 3. 7�a� th� p�vision aS the �t. Peul I.egielative Cods Sectian 6�+.Od, inaofar sa ths seme requires the adoptian oP a�n amendaaent to the zoaing ordinance by an affirmative trote of ttiro-thirde of the full membe�rship of , _ , � . 4